The Legal Trail1) In August 2014, Mrs Swati Sayaji Patil filed a public interest litigation (PIL) in Bombay High Court (BHC) requesting the issue of following directions for the organisation of Dahi Handi events in the state of Maharashtra-
- An age limit of 18 years for the performers,
- A cap of 20 ft on the height of human pyramid,
- Classification of Dahi handi as ‘dangerous performance’ under section 143B of the Bombay Police Act, 1951, and
- Informing the competent authorities 15 days in advance, about the following particulars : (i) exact place/venue of the celebration; (ii) the hours during which Dahi Handi will be performed (iii) names, addresses, photographs and age proof of the participants
As it happened and Why it happenedCultural significance Let us take a step back to analyse the raison d’être behind these developments. The formation of the human pyramid during the festivities of Janmashtami is ingrained in the cultural milieu of Mumbai. The chants of Govinda Ala re Ala are not unknown to any Mumbaikar and immediately conjure an image of a small boy attempting to break an earthen pot suspended at a height. Although Dahi Handi started as an innocuous ritual it has now transformed into a competition over the years. It became a formalised event wherein competitions would be organised and every year, and the height of pyramid went on increasing along with the prize money. Although it enthralled the spectators, who enjoyed this new commercialised and popular event, it brought its share of risks. People got injured during the formations. Many participants including children aged between 9 -18 also died. Such accidents and casualties increased during 2011-2014. The main cause was the lack of safety precautions during these events. The participants wear no helmets, have no safeguards, and consequently are exposed to great risks. Political Significance As the cultural significance of Dahi Handi soared, so did its proximity with politics. As rightly put by Terry Eagleton, “From the viewpoint of political power, culture is absolutely vital. So vital that power cannot operate without it.” During these festivities, the people of all the classes and age gathered in large numbers. Therefore, these events became a platform for public outreach. Taking advantage of this turnout, the political parties, started sponsoring these events, offering whopping prize money. Over the years, the participants started wearing the T-shirts of political parties and having their slogans stencilled on their headbands. To add to the fervour, celebrities, also became a part of the celebrations. All of this created a simulated campaigning environment in the midst of festivities. Understanding the Judicial Premise
It is said, “Consider the reason of the case, for nothing is law that is not reason.” – Sir John Powell.The BHC and SC have laid down the basis for their decisions. In 2014, while putting an age cap of 18 years, the division bench BHC (Justices V M Kanade and Revati Mohite Dere) stated that, “Adults can take part in any sport as they have the right to do so. But children are involved here and hence we have to keep their interest in mind.” As minors cannot be said to have given informed consent with respect to their participation in these events, the order of the court is based on sound grounds. The increasing number of accidents because of falling from heights in the absence of safety measures, vindicates the height cap as well. The SC while upholding the BHC order in 2016 stated, “To increase height is very scary. Are you getting an Olympic medal out of this? Then we will be happy”. As a counter to the arguments of the restrictions imposed by the order as being violative of religious sentiments, the SC further stated, “We only know of Lord Krishna stealing butter, but not of the acrobatics involved” Although many have lambasted the SC statements as being flippant, the apex court has made it in the light of the state of affairs prevalent during these events. To substantiate, in 2014, a month after the BHC order imposing restrictions on the Dahi Handi celebrations was passed, the state of Maharashtra, came up with a Government Resolution (GR) classifying Dahi Handi as an adventure sport. Owing to this classification regulations could be made for the conduct of such events by the state. Consequently, in 2015, a Dahi Handi Samiti was formed to submit a report to the Maharashtra Government, about suitable guidelines to regulate its conduct. In August 2015, the State government came with certain guidelines, which obligated the Dahi Hand organisers, to procure adequate safety equipment and insurance policy for every participant. Children below 12 could be allowed to participate only after the consent of parents. But there were no restrictions imposed on the height of the pyramids. Moreover, the Chief Secretary of the Samiti was present in the events during these festivities where these guidelines were blatantly violated. These breaches along with the non-adherence to the BHC order triggered the filing contempt petition by the activist Swati Patil in 2016. Smt. Swati Patil- the initial petitioner. As the guidelines issued by the Samiti were not comprehensive and their implementation was not overseen at the division and the district level as envisaged, the SC decision of upholding the BHC order has sound logic in the garb of caustic remarks. Public Outrage at the Decision
“Laws and principles are not for the times when there is no temptation: they are for such moments as this, when body and soul rise in mutiny against their rigour … If at my convenience I might break them, what would be their worth?” – Jane EyreLaws may change the cultural practices, imbalance the societal equilibrium to meet the dynamic requirements of the times to come. But it has the immediate impact of public disapprobation. This is exactly what ensued the SC’s verdict on the Dahi Handi restrictions. The organisers were reluctant to abide by the age and height guidelines. They were of the opinion that height is the charm of Dahi Handi and capping it will seriously impact the fervour of the festivities. The political parties who had already invested enormous money in the organisation were resolute about not following the order. As a mark of protest, one MNS sponsored organisation, erected around 49 ft pyramid wearing t-shirts stating, “I will break the law.” Other means of disapproval included, showing black flags, and carrying a measuring tape in mouth while breaking the handi, thereby mocking the restrictions were also not uncommon. One of the organisations went a step ahead disregarding the order by building 30 feet horizontal pyramid. The immediate response by the law enforcers saw the police registering FIR against the alleged violators under sections 224 (Resistance or obstruction by a person to his lawful apprehension), 308 (Attempt to commit culpable homicide), 336 (Act endangering life or personal safety of others), 188 (Disobedience to order duly promulgated by public servant), 34 (Acts done by several persons in furtherance of common intention) of Indian Penal Code 1860. More than 40 FIRs were registered against individuals and organisations. The initial outburst turned turned tepid with the authorities withdrawing the charges, and merely censuring the violators. The justification was the lack of knowledge on the part of innocent infringers about the repercussions of their act. Certainly the state of Maharashtra has carved their own general exceptions under IPC. Intriguing times ahead- New Dimensions This year Dahi Handi was celebrated on August 15. But before that there is a lot to unravel. On July 10, 2017, the SC directed the Maharashtra state government to come up with the guidelines regarding the protection measures proposed to be undertaken during the festivities this year. The State of Maharashtra is adamant to relax the restrictions on age and height, primarily because the essence of the festival is bal govindas climbing pyramids. Certain measures such as the mandatory use of helmets, tying the children on the top of the pyramid to the crane, have been suggested. Interestingly enough, another development has also come up in the state of Maharashtra, On July 17, 2017, a division bench of BHC questioned the State government’s reason for classifying Dahi Handi as an adventure sport in 2014. The main query directed to the state was whether such classification, allows the state to evade the BHC order imposing the restrictions. The High Court will hear the arguments of the state on this issue on August 4, 2017. Does this mean, if the classification of Dahi Handi being an adventure sport is upheld all the restrictions of BHC become meaningless? Maybe. Nevertheless, there might be a novel way to regulate it. On July 22, 2017, a division of BHC came with an order directing the State government to come up with new guidelines to for the regulation of adventure sport. Although the matter would be heard somewhere around September 20, 2017, there might be a possibility of Dahi Handi being only governed by these guidelines in the future. However, there are certain questions that still remain to be answered, Will the guidelines be followed this time? Whether the infringers will be punished? How safe is safe while determining the precautionary level of height? Whether Dahi handi is an adventure sport? Whether it needs to be formalised into a sport? In some other countries, a similar formation of human pyramids is a common cultural practice. There is no law regulating it. Still, the accidents are a rarity. Maybe India and in particular the state of Maharashtra could look at similar international trends. In the words of Oliver Wendell Holmes, “The life of the law has not been logic; it has been experience.” Therefore one can just hope that SC makes a balanced order in August that does not create a déjà vu of the January, Jalikattu protests. It is about time that the interaction between religion, sports and politics strike the right cord.
The decision ultimately passed in the first week of August included Justice Gavai saying the following: "Accidents can happen anywhere, the majority occur in toilets, can we regulate all of them. Every day, while taking selfies, people fall from high rises or hill tops; can we regulate them?" The Bombay High Court further indicated their respect for the state government-issued mandate that it would abide by the statutory provisions laid down under the Child and Adolescent (Prohibition and Regulation) Act, 1986, which prevents children below the age of 14 years from being employed in any occupation, including 'dahi handi'. There was no cap issued on the maximum heights of the pyramid. The Dahi Handi Utsav Samanvay Samiti further assured that they would be extending an insurance cover of Rs 10 Lakh towards the "govindas" in case of any untoward incident.
Footnotes:  Mrs. Swati Sayaji Patil V. State of Maharashtra & Ors, (Public Interest Litigation No. 95 Of 2013 With Notice Of Motion (L) No. 456 Of 2014).  Amit Jaising Saraiya & Anr versus State of Maharashtra & Ors. (Special Leave to Appeal (Crl.) No(s). 6370/2014). References- 1) State issues guidelines for Dahi Handi celebrations- http://indianexpress.com/article/cities/mumbai/state-issues-guidelines-for-dahi-handi-celebrations/ 2) SC guidelines may be flouted at dahi handi celebrations today http://timesofindia.indiatimes.com/city/mumbai/SC-guidelines-may-be-flouted-at-dahi-handi-celebrations-today/articleshow/53850299.cms 3) Dahi Handi should be treated as cultural festival- http://www.afternoonvoice.com/dahi-handi-should-be-treated-as-cultural-festival.html 4) ‘Dahi handi a festival, not political event’ http://www.hindustantimes.com/mumbai-news/dahi-handi-a-festival-not-political-event/story-MvdGqsINBWUPZr7o6aUCPO.html 5) Pride, politics and culture: Why Mumbai wants dahi handi festival to go on- http://www.hindustantimes.com/cities/pride-politics-and-culture-why-mumbai-wants-dahi-handi-festival-to-go-on/story-n1tWZa1PgUmTXcq5PL153N.html 5) CM Fadnavis makes ordinance noise for Dahi handi- http://www.asianage.com/metros/mumbai/070717/cm-fadnavis-makes-ordinance-noise-for-dahi-handi-ganesh-fest.html 6) How Mumbai’s distinctive dahi handi festival became more dangerous for child participants- https://www.google.co.in/search?q=How+Mumbai's+distinctive+dahi+handi+festival+became+more+dangerous+for+child+participants&rlz=1C1ASUC_enIN671IN671&oq=How+Mumbai's+distinctive+dahi+handi+festival+became+more+dangerous+for+child+participants&aqs=chrome..69i57.839j0j7&sourceid=chrome&ie=UTF-8 7) Why politicians love Dahi Handis on Janmasthami in Mumbai http://indianexpress.com/article/opinion/web-edits/dahi-handis-janmasthami-shiv-sena-mumbai-2992421/ 8) Human pyramids: What Spain’s castellers could learn from Mumbai’s govindas https://scroll.in/article/748624/human-pyramids-what-spains-castellers-could-learn-from-mumbais-govindas 9) Political defiance to SC ruling on Dahi Handi restrictions is not for society’s welfare- http://www.firstpost.com/india/political-defiance-to-sc-ruling-on-dahi-handi-restrictions-is-not-for-societys-welfare-2982786.html